The State v Rex Zano Onepa (No 1) N2858

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 03 February 2005
• Court: National Court
• Citation: (2005) N2858
• Docket Number: CR No 1050 & 1191 of 1999
• Year: 2005
• Judgement Number: N2858

Full Title: CR No 1050 & 1191 of 1999; The State v Rex Zano Onepa (1) (2005) N2858

National Court: Lenalia, J

Judgment Delivered: 3 Feb 2005

N2858

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1050 & 1191 OF 1999

THE STATE

-V-

REX ZANO ONEPA (1)

KOKOPO: Lenalia, J.

2004: 13 – 17 Dec.

2005: 31 Jan, 3 Feb

Criminal Law – Double willful murder – Not guilty pleas – Trial – Criminal Code s.

299, (Ch. No. 262).

Criminal Law – Evidence – Criminal liability and responsibility – Defences – Insanity

– Elements of – Impairment of capacity insufficient – Natural intention and ability to control action – Applicability of defence of insanity – Criminal Code s. 28, (Ch. No. 262).

The defence of insanity is provided for under s. 28 of the Criminal Code in the following terms:

“(1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity—

a) to understand what he is doing; or

b) to control his actions; or

c) to know that he ought not to do the act or make the omission.

(2) A person—

a) whose mind, at the time of his doing or omitting to do an act is affected by delusions on some specific matter or matters; and

(b) who is not otherwise entitled to the benefit of the provisions of Subsection (1),

is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist”.

Criminal Law – Provocation – Defence of – Elements of provocation – Whether

provocation as complete defence – Charges of willful murder – Evidence of premeditation – Criminal Code s. 267, (Ch. No. 262).

The Criminal Code (Ch. No. 262), s. 267 provides for the defence of provocation as follows:

“(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he—

(a) is deprived by the provocation of the power of self-control; and

(b) acts on it on the sudden and before there is time for his passion to cool,

if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) Any question, whether or not—

(a) any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered; or

(b) in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or

(c) any force used is disproportionate to the provocation,

is a question of fact”.

Held: (1) The defence of insanity requires that there be a mental disease or natural mental infirmity which must be shown by medical evidence to have deprived the person charged of his capacity to understand and control his actions at the time the act or omission is done.

(2) Impairment of capacity to understand or control an accused actions affected by emotional disturbances such as anger, jealousy, revenge or lack of self-control are excluded and are not applicable to s. 28 of the Code.

3 In a case where, a person has premeditated the killing of a person, then another person is killed, is criminally responsible for willful murder.

4 In a case like the instant one where the accused had planned in advance to “stab the man to death”, the defence of provocation does not apply nor does the defence of insanity unless there was medical evidence of pre- existing conditions of a state of mental disease or “natural mental infirmity”.

Cases cited

The State -v- Tendi Kalio Ulo [1980] PNGLR. 350

Plar No.1 of 1980 [1980] PNGLR 326NGLR. 493

Goi -v- The State [1991] PNGLR. 161

The State -v- Enakuan Salaiau [1994] PNGLR. 388

The State -v- Hekavo [1991] PNGLR. 394

R -v- Brigitta Asamakan [1964] PNGLR. 193.

Counsels

J. Pambel, for the State

J. Isaac, for the Accused

3rd February 2005

LENALIA, J: The accused is charged with two charges of willful murder of Roi Zano and Stafford Eki contrary to s. 299 of the Criminal Code. After being arraigned, the accused entered not guilty pleas to both charges.

The facts of these two cases began in the following way. On 29th of June 1999 at Kokopo Police Station, East New Britain Province, the accused having planned in advance to kill a person by the name of Buka, came to Kokopo market where he found his wife Roi Zano. After having an argument with her, the accused slapped his wife. His wife (now deceased) walked quickly down to the Police Station where she laid the complaint. The accused followed the victim to the station and asked her what was, she reporting to the police about.

After hearing the wife complained, policemen on the counter informed the victim and accused that they should settle at home because it was a family problem. They were told to go away. They walked to the Bank of South Pacific and the victim having noticed a sharp pointed piece of grass-knife on the body of the accused, she went back to the police station to report to the police to disarm the accused. She walked back to the police station, not far away, only in a distance of about 150 to 200 metres and when she got to the door to the General Duty Office, the accused came behind her, held her by her back and stabbed her. She died instantly.

In the course of trying to separate the accused and his wife, a number of policemen and policewomen tried to separate the pair. In that commotion, the accused stabbed the second deceased a policeman in execution of his duties. The second deceased died sometime later in the hospital. Two other police personnels were also stabbed.

Evidence

The prosecution evidence establishes that on 29th day of June, 1999, the accused willfully murdered his wife, Roi Zano and Police Constable Stanfford Eki in execution of his lawful duties. The State evidence came from three witnesses. Apart from oral testimonies, a number of documentary exhibits were tendered together with a short piece of grass-knife used by the accused to facilitate the brutal killings of the two deceased.

Documentary evidence tendered and accepted as evidence for the State (excluding medical report done on the accused) included the following:

the original record of interview (ROI) in Pidgin Ex. “A”.

the English version Ex. “B”.

medical report by Dr Willem van der Linden Ex. “C”.

medical report by Dr. Yap Ex. “D”.

medical report by Dr. Pomat Ex. “E”.

s. 96 District Court Act – Statement Ex. “F”.

grass-knife used in the killing Ex. “G”.

Dr. J. Kaven medical report on accused Ex. “H”.

(Dr. Kaven’s evidence was accepted only on the basis that such report was made but not as to the truth of its contents).

Going by the reverse order of the witnesses called, I begin by discussing the evidence of Councillor Sae Napita, a long time resident of Palnavirua Ward in the Kokopo/Vunamami Local Level Government area in this Province. Putting the evidence that way would make it more logical in terms of all chronological events which took place prior to the commission of these two offences. Originally, this witness comes from Wapanamanda District in Enga Province. He has been in this Province for some time even before 1997. He is currently residing at the Sonoma Plantation where he works as a labourer. This witness knows the accused well as they have lived and worked together at the said plantation for a long time.

Sae recalls that, the accused and his deceased wife had always had marital problems since the accused brought his wife to this Province since 1998. But the accused had been in this Province well before the twin volcanic eruptions in 1994. In 1998, witness Sae recalls that, the accused came to him in his capacity as a Ward Councillor and told him that he (accused) and his wife were having a family problem because the wife was not staying and even sleeping with him in their matrimonial home and that very often, she used to sleep with her relatives away from the family house.

Having heard the accused’s complaint, Councillor Sae invited his own wife to go to see the accused and his wife. According to Sae, when he and his wife got to the accused’s house, the accused’s wife told the couple that, the accused does not treat her and their daughter well. That he never gave them any money and does not support them by provision of necessities. The accused’s wife told a story to Sae and his wife of an incident when the accused bought bags of betelnut from this Province and brought them to Lae by ship for sale. After the sale, the accused returned to Kokopo, but he never gave any money to his wife. This behavior really upset the deceased.

After counseling the accused and his wife, Sae asked the accused to pay compensation to his wife for threatening to cut her with a bush-knife and asked them both to return to church. The accused and his wife and Sae and his family are of SDA backgrounds and at one stage Sae in his capacity as a leader and Ward Councillor counseled the couple and closed with a word of prayer for the family to settle down and reunite.

Part of the State’s evidence is that, in the course of their stay at the Sonoma Plantation, the accused used...